It’s been over three years since former President Donald Trump signed FOSTA-SESTA, a major carveout to internet speech law Section 230. Proponents called the law — which adds penalties for hosting illegal sex work-related content — necessary to prevent online trafficking. But a new government report suggests it remains rarely used, even as legislators push for other, similar platform liability laws.
Earlier this week, the US Government Accountability Office (GAO) released a legally mandated report on the first three years of FOSTA-SESTA. The oversight agency compiled data from court records and corroborated it with other organizations, including the nonprofit Human Trafficking Legal Center. It found that over three years, the Department of Justice filed just one case under its rules against promoting or recklessly disregarding sex trafficking: a June 2020 charge against the owner of cityxguide.com, which remains in court.
Justice Department officials claimed the law is potentially useful because it lets them push for longer criminal sentences and add more charges that might stick to defendants. But they told the GAO that FOSTA hasn’t been used more for a couple of reasons. Firstly, prosecutors can’t apply it to offenses from before the law was signed in 2018. Secondly, when going after platforms that allegedly facilitate trafficking, “prosecutors have had success using racketeering and money laundering charges against those who control such online platforms in the past.” Major alleged sex work hub Backpage.com, for instance, was seized before the law was signed.
In early 2020, former Attorney General William Barr argued criminal prosecution wasn’t the only reason laws like FOSTA-SESTA mattered; he called prosecution a “limited tool” that should “work hand in hand” with civil cases brought by people who survived sex trafficking. But the GAO also found limited evidence of civil FOSTA-SESTA cases. As of March 2021, it had identified a single person who sought civil damages under the law, and the case was dismissed with no damages awarded. An April lawsuit referenced FOSTA-SESTA, but it relied on other statutes and had little to do with conventional sex trafficking claims. Overall, “criminal restitution has not been sought and civil damages have not been awarded” under the law, it notes.
The report says there’s “no definitive reason” why the law has been used so rarely. “One possible reason is that the [FOSTA-SESTA] provision that allows for civil remedy is relatively new and untested,” it says. It also suggests that civil cases are easier to file if there’s been a related criminal conviction — and as mentioned above, that hasn’t happened yet.
FOSTA-SESTA was signed just days after the Justice Department seized Backpage.com, and the GAO says it’s impossible to disentangle the impact of both moves. Either way, it concludes that many commercial sex platforms fragmented or moved overseas soon after, while many of their users shifted to using conventional social media — which it says has made gathering evidence and prosecuting cases more difficult. This difficulty could also have slowed the filing of FOSTA-SESTA-related cases.
The National Center for Missing and Exploited Children, which supports FOSTA-SESTA, called the law an effective deterrent to sex trafficking earlier this year, even if it wasn’t frequently applied. But a 2020 survey indicated that it caused platforms to preemptively crack down on consensual sex workers as well, making their jobs more dangerous and difficult — while the GAO’s report indicates little direct evidence that it’s helped prosecutors tackle trafficking cases.